Stinchfield v. Budge
| Decision Date | 13 December 2010 |
| Docket Number | 3:05-cv-0185-KJD-RAM |
| Parties | JOHN STINCHFIELD, JR., Petitioner, v. MICHAEL BUDGE, et at., Respondents. |
| Court | U.S. District Court — District of Nevada |
This action is a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, by John Stinchfield, Jr., who is represented by counsel. Before the court is respondents' Answer (docket #90) and petitioner's Reply (docket #97).
Petitioner has on file a second amended petition raising seven grounds for relief. This matter was reopened upon petitioner's motion February 9, 2009 (docket #65) and the Second Amended Petition was filed on March 16, 2009 (docket #67). Respondents moved to dismiss to dismiss arguing several claims in the petition were untimely or unexhausted. As a result of the motion and the Court's review, petitioner abandoned grounds two and five of the petition. The remaining five grounds for relief are now before the Court for consideration on their merits.
Preliminarily, respondents argue that the petition still contains unexhausted claimsand that it must be dismissed under Rose v. Lundy, 455 U.S. 509, 510 (1982). Petitioner contends, and the Court agrees that ground six, a claim of ineffective assistance of appellate counsel for failing to include an appeal claim attacking the sufficiency of the evidence relied upon to convict petitioner on the charge of attempted murder, was presented on appeal from denial of the claim on post-conviction review.1 See Exhibit 73, pp. 8(j) and (k), ¶ 2, Petition for writ of habeas corpus (postconviction) and Exhibit 84, Pro Per Notice of Appeal.
Petitioner has fairly presented the substance of his claim of insufficient evidence to the Nevada Supreme Court for its review when he filed his pro se notice of appeal of the denial of his post conviction petition and the Nevada Supreme Court considered the petition on the record without briefing or argument. See, Luna v. Cambra 306 F.3d 954, 965 (9th Cir. 2002) 311 F.3d 928 (9th Cir. 2002). Because petitioner has abandoned the two grounds of his Second Amended Petition that were unexhausted and because ground six of the petition was fairly presented to the Nevada Supreme Court, the petition is not "mixed" and it shall not be dismissed on that basis.
28 U.S.C. §2254(d), a provision of the Antiterrorism and Effective Death Penalty Act (AEDPA), provides the standards of review that this Court applies to the petition in this case:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. §2254(d).
A state court decision is contrary to clearly established Supreme Court precedent, within the meaning of 28 U.S.C. §2254, "if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [the Supreme Court's] precedent." Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 1173, 155 L.Ed.2d 144 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), and citing Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002).
A state court decision is an unreasonable application of clearly established Supreme Court precedent, within the meaning of 28 U.S.C. §2254(d), "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Lockyer v. Andrade, 538 U.S. at 74, 123 S.Ct. at 1174 (quoting Williams, 529 U.S. at 413, 120 S.Ct. 1495). The "unreasonable application" clause requires the state court decision to be more than incorrect or erroneous; the state court's application of clearly established law must be objectively unreasonable. Id. (quoting Williams, 529 U.S. at 409, 120 S.Ct. 1495).
In determining whether a state court decision is contrary to federal law, this Court looks to the state courts' last reasoned decision. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir. 2000), cert. denied, 122 S.Ct. 324 (2001). With respect to pure questions of fact, "a determination of a factual issue made by a State court shall be presumed to be correct, " and the petitioner "shall have the burden of rebuttingthe presumption of correctness by clear and convincing evidence." 28 U.S.C. §2254(e)(1). If there is no reasoned decision upon which the Court can rely, then it must make an independent review of the record to determine whether the state court clearly erred in its application of controlling federal law. See Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir.2000).
In ground one, petitioner claims that he "was denied his right under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution to the effective assistance of counsel when counsel failed to object to (1) the Court's erroneous dismissal of the trial jury after the guilt phase and (2) sentencing of Stinchfield at the penalty hearing without the trial jury." Second Amended Petition (docket #67). Petitioner further argues that he is entitled to have his conviction vacated because the same jury that decided his guilt did not decide his punishment.
Under Nevada law, a criminal defendant in a first degree murder trial is entitled to have his punishment determined at a penalty hearing by the same jury that had heard the evidence of guilt. NRS 175.552 provides in pertinent part:
1. Except as otherwise provided in subsection 2, in every case in which there is a finding that a defendant is guilty or guilty but mentally ill of murder of the first degree, whether or not the death penalty is sought, the court shall conduct a separate penalty hearing. The separate penalty hearing must be conducted as follows:
(a) If the finding is made by a jury, the separate penalty hearing must be conducted in the trial court before the trial jury, as soon as practicable.
NRS 175.552(1)(a). Despite the requirements of this statute, the trial judge dismissed the jury and at a later penalty hearing imposed the maximum sentence available.
To prove ineffective assistance of counsel, petitioner must prove (1) that his attorney's actions were outside the wide range of professionally competent assistance, and (2) that counsel's actions prejudiced him. Strickland v. Washington, 466 U.S. 668, 687-90 (1984). Petitioner argues that the mandatory language of NRS 175.552 imposed a duty upon his counsel toobject to the court's erroneous dismissal of the trial jury before the penalty phase hearing was complete, and that counsel's failure to object was deficient performance which prejudiced him in the form of the sentence imposed.
According to respondents, petitioner's claim of ineffective assistance of counsel in these circumstances was acknowledged to be meritorious in state court post-conviction proceedings on the basis that petitioner was entitled under Nevada law to have the same jury hear both the guilt and penalty phases of his criminal trial. Respondents argue that the relief afforded by the state courts--a new penalty phase hearing and sentencing by a jury--renders this claim moot. Alternatively, respondents argue that the claim was decided under state law and the Nevada Supreme Court's affirmance was on that basis, foreclosing review of the claim by this federal court.
When petitioner appealed the resentencing, the Nevada Supreme Court again upheld the relief given based on state law grounds. See Exhibit 106. The court said:
This court has previously held that "[t]he failure to properly sentence does not render the trial and proceedings a nullity." [fn. 3: State v. District Court, 85 Nev. 485, 488, 457 P.2d 217, 219 (1969); see also Thomas v. State, 120 Nev. 37, 83 P.3d 818 (2004); Evans v. State, 117 Nev. 609, 28 P.3d 498 (2001); Hollaway v. State, 116 Nev. 732, 6 P.3d 987 (2000) ().] "When an improper sentence is the sole basis of the complaint no vacation of conviction or adjudication is necessary since justice may be done by correction of the sentence." [fn. 4: District Court, 85 Nev. at 488, 457 P2d at 219.] Although NRS 175.552(1)(a) provides that a separate penalty hearing must be conducted before the trial jury, Stinchfield has failed to point to any authority supporting his proposition that a new guilt phase proceeding is warranted when an error only affects the penalty phase. The district court correctly determined that the proper remedy was a new sentencing hearing before a newly empanelled [sic] jury. Counsel's failure to object to the district court's release of the jury did not affect the jury's finding of guilt or render the trial proceedings a nullity. Accordingly Stinchfield's claim that he is entitled to a new trial lacks merit.
Order of Affirmance, Exhibit 106, pp. 2-3.
An error of state law such as occurred here does not equate to a denial of due process.
Gryger v. Burke, 334 U.S. 728, 731 (U.S. 1948). A due process violation occurs only when the state law error is so prejudicial that it renders the defendant's trial fundamentally unfair. Moore v....
To continue reading
Request your trial